“With only a few exceptions, the Supreme Court has seized every opportunity to facilitate the drug war, primarily by eviscerating Fourth Amendment protections against unreasonable searches and seizures by the police. The rollback has been so pronounced that some commentators charge that a virtual “drug exception” now exists to the Bill of Rights.” p. 78
In this week’s reading, Prof. Alexander looks primarily at searches and arrests, noting how much these police activities have changed since the outset of the War on Drugs and how the Supreme Court has enabled these changes and thereby mass incarceration through its interpretation of the Fourth Amendment. Before getting into the legal details, Alexander reminds the reader that in just twenty years, from 1980 to 2000, the prison population went from 300,000 to over than 2 million, and by 2007, 1 in every 31 adults was in jail, on probation, or on parole.
Alexander begins her investigation of the change in police searches with Terry v. Ohio, the 1968 Supreme Court decision that allows police, when they observe something that causes “reasonable articulable suspicion” that criminal conduct is occurring, can stop the person and question them. The police can also search the person for weapons to ensure the safety of the officers. Today, stop-and-frisks have become commonplace in some neighborhoods and, in effect, no longer require any kind of suspicion of criminal activity.
The Supreme Court’s decision in Florida v. Bostick paved the way for police to conduct sweep searches (e.g., systematically searching everyone and their luggage on a bus) without individualized suspicion. The Court determined that these searches were consensual because a “reasonable person” under the same circumstances would feel free to say no to the police if they did not want to be searched. The Supreme Court has also given its blessing to pretext stops where the police pull over a driver for a minor traffic violation, and then, despite having no evidence of drug activity, turn the event into a search of the person and the entire vehicle.
Alexander then asks an astute question: why do the police do all this for what are often minor drug crimes when they have bigger and more violent crimes to worry about? The answer she provides is: money. The federal government gives state and local police huge cash grants for drug enforcement – but not for any other crimes. Another big incentive is equipment – leftovers from the military. As a result, police departments have placed an outsized focus on drug crimes and have done so with military-grade helicopters, assault rifles, grenade launchers, and night goggles. Heavily armed and armored SWAT teams, originally intended for terrorist threats and hostage situations are now used to serve search and arrest warrants.
Police are also incentivized by the fact that police departments often get to keep the assets of those suspected of drug-related activity. This includes cash, cars, houses, bank accounts, and more. Next week’s reading picks up with more discussion of forfeiture.
When the Supreme Court in Florida v. Bostick decided that a “reasonable person” would feel free to tell the police that they did not consent to having their bags searched during a bus sweep search, what color skin would this reasonable person have? Should skin color matter when determining what a “reasonable person” would do? What about gender?